Using the Freedom of Information Act

Part I: What is the Freedom of Information Act?

By Matthew E. Kelley

Matthew E. Kelley (Ojibwe) is an attorney with the media law firm of Levine Sullivan Koch & Schulz, LLP, based in Washington, D.C., and a provider of legal advice for the NAJA Legal Hotline. He is a lifetime NAJA member and former reporter for The Associated Press and USA Today.

The federal Freedom of Information Act can be a powerful tool for journalists to perform their crucial role as watchdogs of the government. It is particularly important for Native journalists given that the federal government has more pervasive influence over the lives of Native people and the operations of tribal governments than for most other groups of citizens. But, as with any other bureaucratic process, using FOIA often can be a confusing and frustrating experience. Knowing the basics of how the law works can make navigating the process easier.

The basic idea behind FOIA is that information collected and kept by the government belongs to the people, and therefore the people should generally have access to that information. FOIA requires federal agencies to provide their records – subject to several important exceptions – to anyone who asks. The law applies broadly, not just to paper documents but also to all “records” kept by an agency, including photos, video and audio recordings, email, databases, and other digitally stored information. Although journalists aren’t the only ones allowed to use FOIA (and most FOIA requests are made by private businesses and individuals, not reporters), the law does provide some important advantages for journalists using the law as a reporting tool, which are discussed below.

At the outset, though, the law’s limitations bear emphasis. First, FOIA only covers documents or other records the agency already has; you can’t use FOIA to force an agency to compile information for you.

Second, government agencies have limited resources, and responding to FOIA requests generally is not at the top of their priority lists. As a result, many agencies are flooded with requests and have backlogs, so there can be significant delays in receiving requested documents.

Third, when it comes to FOIA, not all agencies are created equally. Some federal FOIA offices are thorough, quick and responsive, while others are not as efficient or helpful.

Fourth, although it may seem obvious, FOIA only applies to agencies of the federal government. It does not apply to state governments (all of which have their own freedom of information laws), tribal governments, or private entities such as corporations or foundations.

Part II: How to File a FOIA Request

The federal Freedom of Information Act can’t help you if you don’t know how to use it. Here are some tips for making a FOIA request to a federal agency.

Filing a FOIA Request

The first step to filing a successful FOIA request is to figure out as precisely as possible what information you want and what federal agency or office is most likely to have that information. Often it is possible to zero in on the precise document you want by talking to sources or spokespeople at the agency to determine what information the agency has and what office has it. Other methods include reviewing the agency’s website, researching federal regulations, and talking to other knowledgeable people (former officials, interest groups, etc.) to develop that kind of information. This step is important because federal agencies – especially those that are swamped with requests or uninterested in releasing certain information – frequently deny requests for the reason that they are not specific enough to let employees know where to look.

Before sending a formal request, it can be worthwhile to simply ask for records. Sometimes agency public affairs staff will provide the records or, if they are publicly available elsewhere, direct you to where you can get copies.

Next, you need to determine where to send your request. Again, some reporting ahead of time can help you determine which office within an agency is the right one to receive your request. Some requests for Bureau of Indian Affairs records, for example, should be sent to one of the agency’s dozen regional offices rather than its Washington headquarters.

Every federal agency should have a link on its website to information about filing a FOIA request. Those links are usually in small type at the bottom of the agency’s home page. For example, the BIA’s FOIA site is http://bia.gov/FOIA/index.htm, and the Indian Health Service’s page is http://www.ihs.gov/FOIA/.

There is no required format for writing a FOIA request; you can use one of the templates provided by various journalism and freedom of information groups (the iFOIA platform from the Reporters Committee for Freedom of the Press is particularly helpful) or draft your own. However, your request should include:

An introductory sentence identifying the letter as a FOIA request and citing the law, such as: “This is a request under the Freedom of Information Act, as amended, 5 U.S.C. 552 et seq.”

A description of the records you are seeking. This needs to be as precise and concise as possible. In other words, don’t be long-winded, but make sure you provide as much detail as possible to allow the agency to zero in on what you are seeking, including a description of the general topic, the names of people and places, and the dates involved. One simple way to arrange this description is in one or more bullet points.

Specifics of the format in which you want to receive the records. It’s particularly important to specify that you would like to receive electronic information electronically and what file format you would like to receive, such as PDF files for documents, Excel files for spreadsheets, or .mp4 files for video. While the agency may not initially provide the records in the requested format, this is something that should be made clear at the outset.

A request for a fee waiver. For most requesters, agencies can require the prepayment of fees to cover the costs of searching for and copying the records. For large requests, these fees can quickly reach the thousands of dollars and beyond. But under the law, “representatives of the news media” are entitled to a partial waiver of those fees. In practice, that generally means that the agency will not charge search fees or copying fees for the first 100 pages of records. Congress changed the law in 2007 to broaden the definition of “representative of the news media” to include “any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.” In other words, any NAJA member doing his or her job should qualify. To support your request, you should state that the information is not for a commercial use, provide the name and a description of your news organization, and briefly state how your receipt of the requested records will “contribute significantly to the public understanding of the operations or activities of the government.”

A statement of the amount of copying fees you are willing to pay. The agency can require you to pre-pay any search and copying fees before handing over the records. The FOIA officer handling your request generally will contact you and let you know the estimated amount of fees and ask whether you want to continue with the request. Letting the agency know that, for example, “I agree to pay up to $50 in copying charges,” can keep the process running smoothly.

A request for expedited processing, if applicable. The law allows agencies to grant expedited processing of a request if the requester shows a “compelling need,” including an urgent need to inform the public about the topic of your request. Such requests are rarely granted, but if the circumstances support it (i.e., a breaking news story), then it is a good idea to ask.

A request that the agency notify you by telephone or email (or whatever method you prefer), rather than by U.S. mail. While agencies don’t always abide by these requests, it is another way to speed up what can be a tediously slow process.

A statement that you look forward to receiving their response within 20 working days, as the statute requires. While this deadline is frequently missed (and is just a deadline for the agency to acknowledge your request, not to hand over the documents), it is a good idea to make the agency aware that you know their legal deadline.

After you file your request, be sure to follow up with periodic phone calls or emails to the agency’s FOIA office to check on the status of your request. Keep a log of those calls or copies of the emails just in case you need to refer to them in an administrative appeal or lawsuit. Generally, the agency will send you, via U.S. mail or email, an acknowledgement that your request has been received and a number assigned to your request that you should use in further communications with the agency.

For an explanation of how to challenge an agency’s denial of your FOIA request, see Part III of this article.

Part III: Challenging Denial of a FOIA Request

Federal agencies responding to FOIA requests frequently release only some of the requested records. In other cases, the agency may deny the request completely or fail to respond within the deadlines set by the law. What do you do then?

FOIA Exemptions

Federal agencies don’t have to hand over any and all records sought under FOIA. In addition to allowing general objections for vague or burdensome requests, the law exempts several specific categories of information. The law requires agencies to interpret the exemptions narrowly, although that doesn’t always happen in practice. Under the law, the agency can generally withhold or redact (i.e., black out) only the specific information covered by the exemption. Plus, the agency is required to state what exemption it claims applies to each withheld record or redacted portion of a record.

The most commonly cited exemptions include:

Exemption 4: Trade secrets. This category generally includes financial information that is provided to government agencies, including business sales statistics, profit and loss statements, market share information, research designs, and secret formulas. An agency withholding records under this exemption likely would assert that the information is confidential and releasing it would cause a significant competitive harm or loss to a business.

Exemption 5: Agency memos. This exemption protects records of the agency’s internal decision-making process, including some internal memoranda, drafts of final reports or policies, and information exchanged between the agency and its lawyers.

Exemption 6: Personal privacy. This exemption protects information, such as personnel or medical files, that would cause an “unwarranted invasion of personal privacy” if disclosed. Agencies have interpreted this exemption to include a broad range of information including lists of names and addresses of government employees and similar information regarding private individuals.

Exemption 7: Law enforcement. This exemption allows agencies to withhold information “compiled for law enforcement purposes,” including information that would interfere with law enforcement investigations or proceedings, disclose the identity of a confidential informant, interfere with a defendant’s right to a fair trial, or endanger a person’s life or physical safety.

Different agencies vary widely in how they apply FOIA exemptions, with some being more aggressive than others in withholding material. When there is a dispute between the requester and the agency regarding whether and to what extent an exemption applies, the requester can file an administrative appeal and, if that is unsuccessful, a lawsuit in federal court.

Challenging the Denial of a FOIA Request

The agency may fail to respond to your FOIA request or deny all or part of it, either by stating that no such records exist, withholding entire records, or redacting parts of the records released to you. When that happens, your first option is to file an administrative appeal – essentially, a request for higher-ups in the agency to reconsider the decision.

An administrative appeal can be made in a letter to the agency’s FOIA appeals officer (who also should be listed on the agency’s website). The letter should say why you believe the agency made the wrong decision, request a more precise explanation of the agency’s decision (if the original explanation is unclear or missing), and remind the agency that you expect a response within the 20-day time limit for appeals. While you can file this appeal yourself without an attorney, it is often a good idea to consult with a lawyer before filing an administrative appeal so you can make the best case (and avoid possible missteps). Requesters can also appeal the denial of news media fee-waiver requests, which, despite clear direction from Congress, many agencies still construe narrowly.

As with the FOIA requests themselves, agencies vary in their responsiveness to administrative appeals. However, an administrative appeal is not a lost cause: The Interior Department, for example, partially or completely grants the appeal or returns the matter to the agency for reconsideration in more than half of the FOIA appeals it receives. On the other hand, the average processing time for a FOIA appeal to the Interior Department is more than one year.

Only after the administrative appeals process is complete (or if the agency doesn’t respond to the appeal within the deadline) can the requester file a lawsuit in federal court challenging the agency’s FOIA decision. A FOIA lawsuit must be filed in federal court and can be filed by the requester pro se, meaning without representation by a lawyer. Again, it’s usually a good idea to consult with or retain an attorney before filing a FOIA lawsuit; the laws and rules governing such lawsuits are complex, and a misstep could turn a winning case into one that is thrown out. Fortunately, a requester who challenges a FOIA denial in court and wins can get his or her attorneys’ fees paid by the government agency involved.

The NAJA Legal Hotline for Journalists can help!

Still confused or unsure about how to file a FOIA request?

NAJA members who don’t otherwise have access to lawyers and who register for NAJA’s legal counseling program can contact the legal hotline to obtain pro bono legal advice about seeking information under federal and state freedom of information laws. You can reach the hotline by calling 405-872-6107 or through email at: [email protected].